By KAREN VELIE

A federal judge on Friday tossed an indictment for 34 counts of seaman’s manslaughter against the captain of the Santa Barbara-based dive boat that burst into flames in 2019, killing 33 passengers and one crew member.

Jerry Nehl Boylan, 68, as the captain and master of the vessel, “was responsibl for the safety and security of the vessel, its crew, and its passengers,” according to the indictment. The grand jury indictment found he caused the deaths of 33 passengers and one crewmember “by his misconduct, negligence, and inattention to his duties.”

However, the indictment failed to specify that Boylan acted with gross negligence, a requirement in proving seaman’s manslaughter, said U.S. District Judge George Wu.

Federal prosecutors plan to either appeal Judge Wu’s ruling or seek a new indictment alleging gross negligence.

The Conception, a 75-foot commercial diving vessel, was anchored off the north side of Santa Cruz Island for a weekend diving excursion. During the early morning hours of Sept. 2, 2019, a fire engulfed the boat and led to its sinking, resulted in the deaths of 34 people who had been sleeping below deck. Five crew members, including Boylan, were able to escape and survived.